On June 8, 2021, Justice Morgan of the Ontario Superior Court struck down several crucial sections of the Ford government’s hastily passed Bill 254, Protecting Ontario Elections Act, 2021. He held that third party political advertising restrictions imposed 12-months before the election period was an impermissible limit on freedom of expression.
The changes to the Election Finances Act
In 2017, the Ontario legislature introduced amendments to the Election Finances Act (“EFA”) which created spending limits on political advertising by third parties. A third party is any person or entity other than a political party, candidate, or constituency association.
Political advertising was defined as advertising with the purpose of promoting or opposing a registered party, leader, or candidate, including advertising that takes a position on an issue that can reasonably be regarded as closely associated with a party, leader, or candidate. Third party political advertising was regulated during the election period and during a pre-election period beginning 6 months before the election period.
In February 2021, the Ontario government introduced further amendments to the EFA through Bill 254. Among other things, Bill 254:
- Doubled the regulated pre-election period for third parties, increasing it from 6 months to 12 months, without a corresponding increase in the spending limits;
- Added onerous interim reporting requirements;
- Added vague “anti-collusion” rules which addressed activities such as “sharing information” and sharing a common vendor;
- Deemed contributions from one third party to another for the purposes of political advertising to be a political advertising expense of the contributing third party; and
- Provided for the Chief Electoral Officer to impose significant penalties without due process.
These restrictions were without precedent. Taken together, they restricted more politically expressive activity for a longer period of time and with more significant penalties than any other jurisdiction in Canada.
Given that the next election in Ontario is scheduled for June 2, 2022, the pre-election period under Bill 254 commenced May 4, 2021.
Goldblatt Partners represented the Elementary Teachers Federation of Ontario in bringing an application challenging the amendments under Bill 254. This application was heard together with an earlier application brought by Working Families Ontario which challenged the 2017 changes to the EFA, as well as with applications brought by the Ontario English Catholic Teachers Association and the Ontario Secondary School Teachers Federation.
In its response to this challenge, the government conceded that the legislation was a breach of the applicants’ right to freedom of expression, contrary to section 2(b) of the Canadian Charter of Rights and Freedoms. However, it argued that the breach was a reasonable and justified limit on this expression under section 1 of the Charter.
The Court strikes down the challenged provisions
Justice Morgan agreed with the applicants that the amendments under Bill 254 could not be justified under section 1.
Justice Morgan made clear that the 12-month restriction on political advertising was not minimally impairing within the meaning of section 1 of the Charter. He held that “it is with the minimal impairment portion of the [s 1] test that the rubber of Bill 254 hits the slippery road of justification, causing the EFA vehicle to skid off course.”
Justice Morgan decided that the 12-month period could not be justified based, in part, on the government’s own evidence. The government’s call for deference, he said, was misplaced because there were no competing social values or socio-economic interests in need of a delicate balance; the choice was really between a 6-month or 12-month regulated period (i.e. the 2017 EFA vs the 2021 EFA). Since the government’s own experts said these periods reflected the same set of values and would both be effective, the 6-month period was clearly a more minimally impairing way to accomplish the same goals.
In Justice Morgan’s words: “Without a contest between competing social or economic values, the constitution cannot support deferring to the legislature for its own sake.”
This was of particular concern in this context where it is a question of electoral design, given the inherent potential for a structural conflict of interest for an incumbent government, and the need to safeguard democratic institutions from partisan self-dealing.
Justice Morgan found that, because the 12-month regulatory period was not Charter-compliant, other related sections, including the factors considered in political advertising (37.0.1), as well as Bill 254’s new anti-collusion, deemed expenditures (37.10.1(3)-(3.1)), and interim reporting rules (37.10.2), should also be struck.
Justice Morgan struck down the impugned provisions, effective immediately. While courts will often grant a suspension of such declarations to give the legislature time to introduce new legislation to fill the void created by the declaration, Justice Morgan determined that was not appropriate in this case because the 12-month pre-election period he had found to be unconstitutional had already commenced.
The spending limits during the election period (from the writ to the election) were unchallenged and remain in place. Other rules related to unions and political financing, such as the ban on union donations to political parties, were not challenged and remain in place.